R v Folland - [2004] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION: R v Folland [2004] QCA 209
PARTIES: R
v
FOLLAND, Kenneth Wayne
(applicant/appellant)
FILE NO/S: CA No 41 of 2004 SC No 347 of 2003
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: 25 June 2004
DELIVERED AT: Brisbane
HEARING DATE: 10 June 2004
JUDGES: de Jersey CJ, Williams JA and Philippides J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made
ORDERS: 1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused
CATCHWORDS: EVIDENCE – WITNESSES – HOSTILE WITNESSES – where appellant charged with murder and convicted of manslaughter – where appellant’s brother was a key prosecution witness – where brother was declared a hostile witness and was cross-examined by prosecution before the jury – where brother gave evidence that differed from his statement to police – where learned trial judge found that brother’s demeanour suggested hostility to prosecution case – whether learned trial judge erred in declaring brother a hostile witness – whether miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where there was some conflict in evidence given by various witnesses – where appellant did not give evidence – whether jury was entitled to conclude that appellant intentionally struck deceased with his car – whether verdict of manslaughter open on the evidence
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – PROVOCATION – appellant sentenced to nine years imprisonment with serious violent offence declaration – whether learned sentencing judge erred in holding that the verdict of manslaughter was based on defence of provocation rather than criminal negligence – whether serious violent offence declaration should have been made – whether sentence imposed manifestly excessive
Evidence Act 1977 (Qld), s 17
Penalties and Sentences Act 1992 (Qld), s 161A, s 161B
McLellan v Bowyer (1961) 106 CLR 95, followed
R v Andrews [1987] 1 Qd R 21, considered
COUNSEL: B W Walker SC, with B W Farr, for the applicant/appellant
D L Meredith for the respondent
SOLICITORS: Ryan & Bosscher for the applicant/appellant
Director of Public Prosecutions (Queensland) for the
respondent

de JERSEY CJ: In my opinion the appeal against conviction should be dismissed, and the application for leave to appeal against sentence refused. I have had the advantage of reading the reasons for judgment of Williams JA, with which I agree.
WILLIAMS JA: After an altercation between the appellant and the deceased (James Niebling) the latter left the front of the house where that incident occurred and began walking away. He crossed the road and was on or very adjacent to the footpath on the opposite side of the road to that house. The appellant got into a motor vehicle, reversed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Folland

Details

AGLC: R v Folland [2004] QCA 209
Case: [2004] QCA 209
Decision Date: 25/06/2004

CaseChat Overview and Summary

In the matter of R v Folland, the appellant, Folland, was convicted of manslaughter, a lesser charge than the murder with which he was initially charged. The case came before the court following Folland's appeal against his conviction, and an application for leave to appeal against his sentence. A significant issue in the trial was the status of Folland's brother, who was a key witness for the prosecution. During the trial, the brother was declared a hostile witness and subsequently cross-examined by the prosecution in the presence of the jury. The brother's evidence differed from his earlier statement to the police, and the trial judge found that his demeanour suggested hostility towards the prosecution's case. The central legal issues were whether the trial judge correctly declared the brother a hostile witness and whether this led to a miscarriage of justice.

The court carefully examined the criteria for declaring a witness hostile and the implications of such a declaration. It was noted that a witness can be declared hostile if they demonstrate a lack of cooperation with the party who called them, and the judge found that the brother's demeanour and the differences between his trial testimony and his police statement supported this conclusion. The court held that the trial judge's decision was well within the bounds of acceptable judicial discretion, and there was no error that would warrant a new trial. The evidence presented, even when coming from a hostile witness, was sufficient to support the jury's verdict of manslaughter.

In light of the findings, the appeal against the conviction was dismissed. The court also refused the application for leave to appeal against the sentence, concluding that the sentence imposed was appropriate given the circumstances of the case. The decision reinforces the principle that a hostile witness declaration can be validly made if there is clear evidence of the witness's uncooperativeness, and such evidence can still form a basis for a conviction if it is otherwise reliable and sufficient.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Folland [2004] QCA 209
PARTIES:	R v FOLLAND, Kenneth Wayne (applicant/appellant)
FILE NO/S:	CA No 41 of 2004 SC No 347 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	10 June 2004
JUDGES:	de Jersey CJ, Williams JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused
CATCHWORDS:	EVIDENCE – WITNESSES – HOSTILE WITNESSES – where appellant charged with murder and convicted of manslaughter – where appellant’s brother was a key prosecution witness – where brother was declared a hostile witness and was cross-examined by prosecution before the jury – where brother gave evidence that differed from his statement to police – where learned trial judge found that brother’s demeanour suggested hostility to prosecution case – whether learned trial judge erred in declaring brother a hostile witness – whether miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where there was some conflict in evidence given by various witnesses – where appellant did not give evidence – whether jury was entitled to conclude that appellant intentionally struck deceased with his car – whether verdict of manslaughter open on the evidence
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – MISCELLANEOUS MATTERS – PROVOCATION – appellant sentenced to nine years imprisonment with serious violent offence declaration – whether learned sentencing judge erred in holding that the verdict of manslaughter was based on defence of provocation rather than criminal negligence – whether serious violent offence declaration should have been made – whether sentence imposed manifestly excessive
Evidence Act 1977 (Qld), s 17 Penalties and Sentences Act 1992 (Qld), s 161A, s 161B
McLellan v Bowyer (1961) 106 CLR 95, followed R v Andrews [1987] 1 Qd R 21, considered
COUNSEL:	B W Walker SC, with B W Farr, for the applicant/appellant D L Meredith for the respondent
SOLICITORS:	Ryan & Bosscher for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent